from the government-copyright-industrial-complex dept

In the latest in a long list of travesties carried out by the US government in the Megaupload case, apparently it went to the US court handling the case, and without letting Megaupload know, got an ex parte order allowing the government to share evidence from the case with various copyright holders and then to issue press releases about the case. As Megaupload's lawyers point out, the whole thing is a clear due process violation.

The defendants have been indicted, their assets have been frozen, their business has been destroyed, and their liberty has been restrained. Given these constraints, it is unclear what evils the Government fears defendants will inflict if provided notice of the Government’s submission, beyond having Defendants’ counsel come into court to make opposing arguments.

Basically, Megaupload's lawyers are asking to be a part of this process, since it appears that the government wanted (and the court allowed) to cut them out. As Megaupload's lawyers note, allowing the government to sort through and cherry-pick evidence to share, without any context or potential additional exonerating information, is a clear due process violation.

“The Government’s request also substantially prejudices the defendants in the case. Permitting the Government to widely disseminate a one-sided, cherry-picked set of facts threatens to improperly infect the jury pool before defendants are afforded any opportunity to present their side of the story.”

Apparently part of the issue for the original filing to reveal this information was that some copyright holders are getting antsy that as the case drags on, they won't also be able to file civil cases against Megaupload before the three-year statute of limitations expires. However, as Megaupload's lawyers point out, there is no urgency here since the government itself made no move to share this information over the past two years. If it really wanted to share the information it had ample time to make the request and allow Megaupload's lawyers to review and take part in the process, rather than trying to route around them entirely.

I'm guessing the recent successes against IsoHunt and Hotfile may have contributed to the timing as well. The MPAA pretty clearly thinks it can use those two cases to go after Megaupload as well, outside of the criminal case which will continue.

from the is-that-really-the-best-you've-got? dept

Techdirt has been writing about corporate sovereignty (also known as investor-state dispute settlement -- ISDS) for a year now. Back in April, we noted that it was likely to be part of the TAFTA/TTIP negotiations, which were just about to start. Since then, more and more people have wokenup to its dangers, and called for corporate sovereignty to be dropped from the negotiations.

The European Commission is evidently feeling the heat, because it has put together a couple of documents with the evident aim of justifying the inclusion of ISDS in TAFTA/TTIP, and sent them to the committee that will be writing the final report on whether or not the European Parliament should accept the TAFTA/TTIP agreement once finalised. The first document is entitled "EU--Canada CETA: main achievements" (pdf and embedded below). It provides us with a rare official glimpse of what is in the still-secret trade agreement between Canada and the EU.

Many of the "clarifications" to corporate sovereignty concepts listed there are welcome: for example, in defining what loose concepts like "fair and equitable treatment", and "indirect expropriation" really mean. But the credibility of the document is undermined by the very first point:

The CETA reaffirms the right of the EU and Canada to regulate to pursue legitimate public policy objectives such as the protection of health, safety, or the environment.

The fact that the European Commission even feels a need to affirm this means that it recognizes that corporate sovereignty does, indeed, threaten the fundamental rights of nations to legislate freely, and without fear of being hauled up before ISDS tribunals. And however much the European Commission may try to "clarify" the corporate sovereignty provisions, clever lawyers will always find ways for their clients to sue countries for daring to bring in laws protecting health, safety or the environment that cause profits to dip.

The opening paragraph once again makes a false equivalence between the right of states to regulate and the need to protect investors:

Investment protection provisions, including investor-state dispute settlement are important for investment flows. They have generally worked well. However, the system needs improvements. These relate to finding a better balance between the right of states to regulate and the need to protect investors, as well as to making sure the arbitration system itself is above reproach e.g. transparency, arbitrator appointments and costs of the proceedings.

The basic argument of the fact sheet can be found in the following paragraphs (bolded phrases in original):

Investment is a critical factor for growth and jobs. This is particularly the case in the EU, where our economy is very much based on being open to trade and investment. Investment is key in creating and maintaining businesses and jobs. Through investment, companies build the global value chains that play an increasing role in the modern international economy. They not only create new opportunities for trade but also value-added, jobs and income. That is the reason why trade agreements should promote investment and create new opportunities for companies to invest around the world.

Companies investing abroad do encounter problems which -- for a variety of reasons -- cannot always be solved through the domestic legal system. These problems range from the rare, but dramatic, occurrences of expropriations by the host country by force, discrimination, expropriation without proper compensation, revocation of business licences and abuses by the host state such as lack of due process to not being able to make international transfers of capital.

Precisely because of these risks, provisions to protect investments have been part and parcel of all the 1400 bilateral agreements entered into by EU Member States since the late 1960s. The EU itself is party to the Energy Charter Treaty, which also contains provisions to protect investments and investor to state dispute settlement. Worldwide, there are over 3400 such bilateral or multiparty agreements in force containing provisions to protect investments. They provide guarantees to companies that their investments will be treated fairly and on an equal footing to national companies. By creating legal certainty and predictability for companies, investment protection is also a tool for states around the world to attract and maintain FDI [foreign direct investment] to underpin their economy.

In essence, it's a kind of syllogism: investment is critically important for the EU economy; investors needs corporate sovereignty guarantees to protect their investment; so TAFTA/TTIP must contain ISDS to "attract and maintain" foreign investment -- in this case, from the US. The clear implication is that without corporate sovereignty, US investors will be reluctant to put their money in Europe, and vice versa.

Total US investment in the EU is three times higher than in all of Asia.

EU investment in the US is around eight times the amount of EU investment in India and China together.

EU and US investments are the real driver of the transatlantic relationship, contributing to growth and jobs on both sidesof the Atlantic. It is estimated that a third of the trade across the Atlantic actually consists of intra-company transfers.

In other words, even though corporate sovereignty is not enshrined in any treaties between the US and EU, the scale of investment (in both directions) is unmatched anywhere else on the planet. It would seem that the European Commission's argument for the necessity of ISDS falls down at some point. It's not hard to see where.

The second paragraph quoted above from the fact sheet lists some of the "rare" problems that arise when investing in foreign countries: "expropriations by the host country by force, discrimination, expropriation without proper compensation, revocation of business licences and abuses by the host state such as lack of due process to not being able to make international transfers of capital." Does the European Commission seriously think either the EU or US is going to engage in any of those activities, or that, if they ever did, investors in those areas would be unable to use local courts to seek redress?

The European Commission's argument in favor of corporate sovereignty is invalid because it mixes two quite distinct situations. It tries to use the problems of investment in just a few emerging economies -- that is, ones without stable governments or honest judiciaries -- which gave rise to ISDS chapters in the first place, and then pretend that similar problems are an issue in the US and EU, and so require the same solution: corporate sovereignty.

But that's simply not true. TAFTA/TTIP is a completely different kind of agreement, quite unlike any of the "1400 bilateral agreements entered into by EU Member States since the late 1960s." Placing arbitration tribunals above the well-developed legal systems of both the EU and US in order to encourage investment that is already taking place on a massive scale, is simply nonsensical. It underlines the European Commission's obvious inability to come up with any real justification for the inclusion of a corporate sovereignty chapter in TAFTA/TTIP.

from the support-is-good dept

Over the last year, the Freedom of the Press Foundation raised nearly half a million dollars to support important threatened journalism efforts. Over the past few months the Foundation has continued to build on its efforts, such as by taking over the SecureDrop project to make it easier for journalism operations to setup a system to get information securely and anonymously from whistleblowers. The Foundation has now kicked off its latest crowdfunding campaign, focused on supporting a series of encryption tools, including Tor, Tails, Open WhisperSystems and the LEAP Encryption Access Projects. Oh yeah, and its own continued work on SecureDrop. It's a good cause. While they focus on how these encryption tools are for journalists, that's underplaying things. These are tools for everyone.

from the urls-we-dig-up dept

If there's a way to eat something, there's someone out there with a "right" way to eat it. Sometimes etiquette dictates how you should eat, but sometimes efficiency trumps the normal rules of society (don't ask when). If you're looking for more efficient ways to eat some common fruits, just check out these guides to eating apples, oranges and bananas.

from the time-to-clear-up-the-mess dept

Earlier today, the Supreme Court agreed to hear the appeal on the Alice vs. CLS Bank case which is yet another case that looks at the patentability of software. The ruling in the Federal Circuit appeals court (CAFC) was one of the biggest judicial messes you'll ever see. The ruling was 135 pages of different judges all disagreeing with each other. In all of that there is only one single paragraph that the court agreed on -- one which rejected the patent as not being patentable subject matter. But as for why they did that? No one could agree. Chief judge Randall Rader has called that decision "the greater failure of my judicial career."

Now the Supreme Court can fix it, and hopefully can establish clear rules -- potentially ones that wipe out software patents entirely, though I'm not convinced they'll go that far. To some extent, the Supreme Court has itself to blame. Back in 2010, in the Bilski case, the Supreme Court had the chance to set clear rules of the road concerning software patents, but instead chose to punt, ruling incredibly narrowly (basically saying "the test the courts use isn't the only test, but we won't tell you what other tests to use"). Because of that, no one knows what tests should be applied to see if software (and business methods) are patentable, and that leads to complete messes like the CAFC ruling in the Alice v. CLS case.

At the very least, one hopes that the Supreme Court will clear things up, rather than punting again by ruling very narrowly. Part of the role of the Supreme Court is to set the standards for the lower courts to follow, based on the Constitution (and the law). Instead, lately, it seems to look to rule very narrowly and to let these issues keep bouncing around without any clarity at all. Hopefully, the Supreme Court will recognize that its own earlier precedents should have effectively made software unpatentable, but even if it won't go that far, a clear rule would be a step forward.

from the wtf dept

Yesterday, lawyer Nick Ranallo, one of the many lawyers who's been instrumental in taking down Prenda Law, filed a notice in the Navasca case, saying that they (he and his client, Joe Navasca) were satisfied that Prenda had paid up the attorneys fees owed, which Judge Chen had ordered back in July. The amount was $22,531.93, which is significantly less than other courts have told Prenda to fork over in other cases (totaling up to about $500,000 last I'd checked), and it appears that Team Prenda decided to fork over the cash, perhaps out of the nearly $2 million the company took in last year.

But the really incredible part in this is that when reporter Joe Mullin, from Ars Technica, reached out to Prenda's Paul Duffy to comment on whether or not Prenda had paid up the fees, Duffy responded in the most bizarre way possible:

I hope you are doing well. I am devastated by the loss of Nelson Mandela and I hope you join with President Obama in remembering his legacy. He ranks with Mohandes Ghandi, Dr. King and President Kennedy in the struggle for human rights over the past 50 years. There are larger issues than the ability to steal porn... You seem like a nice guy. Thanks.

Yes, the copyright porn trolling lawyer, whose firm has been implicated in setting up bogus honeypots to shake people down, in forging signatures and in efforts to publicly embarrass people (oh, and whose wife more or less admitted that her husband was engaged in interstate extortion) is now claiming that he's "devastated" by the loss of Mandela, and talking about "the struggle for human rights." That's a laugh. I'd guess he's a bit more devastated about the hundreds of thousands of dollars he's on the hook for and the criminal and tax evasion charges he may be facing before very long.

from the the-unofficial-National-Tip-Jar dept

The TSA undoubtedly has several problems, chief among them being charged with providing an expensive, interactive theater program aimed at putting travelers' minds at ease while simultaneously putting their nether regions through a rigorous groping regimen. The exposure of documents stating its all-important job isn't actually that important certainly doesn't help. As it stands now, the TSA is just another government institution, destined to be funded in perpetuity, even as its relevance continues to erode.

Last year, the Transportation Security Administration collected $531,395.22 in change left behind at checkpoints.

Federal law requires the TSA to report the amount of unclaimed money they keep every year to Congress. The fiscal 2012 report, obtained by The Washington Post, shows the agency collected about $499,000 in U.S. currency, and another $32,000 in foreign currency, at their checkpoints.

While this amount is literally small change compared to the agency's ~$8 billion annual budget, it's still too significant an amount to ignore. This unclaimed change is earmarked for "civil aviation security" -- you know, the main thing that the TSA does. The agency is supposed to put the money back into the company, so to speak. But, if the following figure is accurate, it would appear the agency is operating at peak (in)efficiency.

[T]he TSA has only spent about $6,500 of the money it collected last year.

Well, if the agency can't use it, maybe it could pass it on to those who could.

On Tuesday, the House passed H.R. 1095, sponsored by Rep. Jeff Miller (R-Fla.), which would require the TSA to fork that cash over to nonprofit organizations that provide travel-related assistance to military personnel or their families.

Good idea, one would think. But that would be before hearing how expensive giving money away can be when the TSA handles the job.

The Congressional Budget Office estimated [pdf] that collecting, accounting for and transferring the money to the USO would cost $1.2 million — $700,000 more than the actual amount collected.

The CBO's two-page estimate is woefully light on details on how it arrived at its $1.2 million figure. It just sort of claims the costs will exceed $1 million, extrapolates this income/expenditure over a decade and states the whole thing will be a wash, even if the TSA's spending steadily declines. To sum up: nothing ventured, nothing lost.

It seems there would be a very inexpensive way to route this money to charity. First off, each airport's security team could designate a charity to route the funds to. Then… nothing. The TSA simply collects the change as usual and dumps it into the proper receptacle. The designated charity could pick this up quarterly (unintentional pun), count it themselves and turn over a receipt for record keeping to the TSA -- all on their own dime (slightly less unintentional pun). Total cost to the TSA: nothing more than the hourly wage it already pays to have someone scoop up and store abandoned change.

End result? PR wins all around (especially if local charities are used) and the agency won't be spending money to reroute money. In fact, donation boxes for the selected charity could be set up right past the scanners, allowing people to toss the change in themselves and restore a little faith in humanity after a trip through the TSA's dehumanizing theatrical production.

from the anti-science dept

In the academic publishing world, I'm not sure if there's any company quite as hated as Elsevier. You may recall the big campaign by academics to boycott Elsevier over its opposition to rules that would make federally funded research publicly available at some time period (six months to a year) after the original publication. Or the time they removed free access to journals in Bangladesh (until academics made enough noise and Elsevier brought them back). Or, how about the fact that Elsevier had an entire division devoted to publishing fake medical journals that were used by big pharmaceutical companies to write ad copy which they could then pretend was from a prestigious medical journal that was really just junk science made to look nice. Oh, and then there was the time Elsevier was caught publishing ghostwritten articles by the pharmaceutical industry that were supposed to be "reviews" of all the research about certain treatments, but which instead played down the negative research and played up the positive kinds.

And then there's just the general concept of the way Elsevier and a number of academic journals work in general. They don't pay their writers, the academics who submit articles (for some journals in some fields, academics actually have to pay significant sums to submit articles), they don't have to pay the peer reviewers who do such reviews for free. So they get content and a certain type of editing entirely for free. Then, they charge obscene sums of money to universities for subscriptions and try to block off all kinds of other access to research if people don't pay up -- which is especially troubling when the research is federally funded. Oh yeah, they also claim the copyright on any research submitted. A professor I know, who was trying to do followup research on some initially published research, actually had to recreate the original results, because the journal that published the original work wouldn't let him reuse the results of his original study, claiming that it was covered by copyright. In other words, they use copyright to make it that much harder to share knowledge and build on the works of others.

The one "crack" in this kind of academic publishing is that many academic journals would "look the other way" if an academic decided to post a pdf of their own research. At least some journals were even willing to put into their contracts that the authors can post a pdf to their own website, or to public collections of journal articles like SSRN.

However, it appears that Elsevier has started cracking down on this practice as well. Bijan Sabet alerts us to the news that Elsevier has suddenly started demanding that copies of research posted to Academia.edu get taken down. Here's one example from bioinformatician Guy Leonard, who posted a copy of his letter from Academia.edu, who clearly isn't happy about this turn of events either:

Here's the full text of the letter:

Hi Guy

Unfortunately, we had to remove your paper, Resolving the question of trypanosome monophyly: a comparative genomics approach using whole genome data sets with low taxon sampling, due to a take-down notice from Elsevier.

Academia.edu is committed to enabling the transition to a world where there is open access to academic literature. Elsevier takes a different view, and is currently upping the ante in its opposition to academics sharing their own papers online.

Over the last year, more than 13,000 professors have signed a petition voicing displeasure at Elsevier’s business practices at www.thecostofknowledge.com. If you have any comments or thoughts, we would be glad to hear them.

The Academia.edu Team

Mike Taylor's writeup of this situation (linked above) notes that many academics are pissed off about this and are complaining about it on Twitter. He also notes that there are some good folks at Elsevier who seem to recognize the importance of access to information and who, themselves, are probably pissed off about this. But, really, it seems that it's in Elsevier's general DNA to try to privatize knowledge, research and understanding. What a shameful company.

from the pure-insanity dept

One of the key issues raised by the head of the US Copyright Office, Maria Pallante, was that it was time to perhaps rethink our current copyright term of life plus 70 and lower it. There had even been some indications that even the maximalists at the MPAA and RIAA were actually (for the first time) open to the idea in her proposal to officially roll back the term to life plus 50 with the ability to "renew" for that last 20 years. When even the maximalists are making noises about reducing copyright terms, and Congress seems open to exploring the issue, you'd think that the folks over at the USTR wouldn't be out there trying to lock us into international agreements that require life plus 70 as a minimum. But you'd be wrong.

The folks over at KEI are putting together a letter to TPP delegates as they go through the latest negotiation, asking them to reject the life plus 70 requirement, noting that many countries that have it today (including the US) have shown indications that they regret such a long copyright term:

There is no benefit to society of extending copyright beyond the 50 years mandated by the WTO. While some TPP countries, like the USA, Mexico, Peru, Chile, Singapore or Australia, already have life + 70 (or longer) copyright terms, there is growing recognition that such terms were a mistake, and should be shortened, or modified by requiring formalities for the extended periods.

The primary harm from the life + 70 copyright term is the loss of access to countless books, newspapers, pamphlets, photographs, films, sound recordings and other works that are “owned” but largely not commercialized, forgotten, and lost. The extended terms are also costly to consumers and performers, while benefiting persons and corporate owners that had nothing to do with the creation of the work.

Life+70 is a mistake, and it will be an embarrassment to enshrine this mistake into the largest regional trade agreement ever negotiated.

Unfortunately, it looks like the only one who had been really fighting back against this proposal was Canada, and the indications are that Canadian negotiators are about to fold and agree to the life plus 70 requirement. There's a very important question here, which apparently no one in the USTR is willing to answer: why are they doing this? It makes no sense. All of the evidence suggests that having copyright this long has been bad for just about everyone, except perhaps Disney. The USTR has never even bothered to look at the issue, rather just accepting the idea that if the US currently has life + 70, it must lock that in permanently around the globe. Because.

It's pure insanity in which the USTR continues to push for proposals that hurt American jobs, innovation and the public alike.

from the kafkaesque dept

In the latest update in the ongoing trial concerning the legality of the US's "no fly list" brought by Stanford grad school student Rahinah Ibrahim after what appears to be a series of monumentally stupid actions by the US government, the feds continue to try to play games that Judge William Alsup isn't interested in playing. Edward Hasbrouck at the Identity Project continues his fine reporting with detailed coverage of Thursday's events. Apparently, the DOJ lawyers tried to insist that the mere fact of whether or not Ibrahim is on the "no fly list" has to be kept secret, including from Ibrahim herself. Judge Alsup pointed out that the mere status of someone -- on the list or off -- wasn't listed anywhere in the list the government provided him of "sensitive security information" (SSI):

Why can’t we tell the party [to the lawsuit] what her status is?

This depends on our saying that national security depends on us having this information, but not her having it. I question whether that is true….

Something’s going on in this case that’s strange, and I mean on the part of the government.

I don’t understand why you’re fighting so hard to avoid having this poor plaintiff know what her status [on the no-fly list] is.

It’s easy for anyone to buy a ticket and try to get on an airplane. If they’re allowed to fly, they know they’re not on the no-fly list. If they’re stopped and handcuffed and sent to jail in the back of a police car, they know they’re on the list.

It’s so easy to find out what your status is by trying to get on an airplane — at least for the no-fly list. That’s a lot easier than months of litigation.

Later, as the government presented its case, it included a discussion of how the State Department later pulled Ibrahim's visa after she was back in Malaysia (it's not entirely clear how this helps their case, since the no fly issue is separate from the visa). But, even there, the statements from the government didn't make much sense to Judge Alsup who called out a witness for saying something that didn't appear to be true -- arguing that Ibrahim could have asked for a special waiver on the visa issue, but didn't. Just one problem: as Judge Alsup noticed, there's a box on the form saying if you're eligible to apply for a waiver -- and the form sent to Ibrahim did not have that box checked.

It’s possible for someone deemed ineligible for a visa to apply for a waiver of that ineligibility. Had Dr. Ibrahim failed to exhaust her administrative remedies by failing to apply for such a waiver?

It was Judge Alsup who pointed out that the box on the notice given to Dr. Ibrahim marked “You are eligible to apply for a waiver of in eligibility” had not been checked. “If there’s a box for that, and the box isn’t checked, wouldn’t that imply to you that she couldn’t apply for a waiver?” the judge asked Mr. Cooper.

“You could infer that,” Cooper replied from the witness box, with an inflection that suggested, “….but you would be wrong.”

“It would certainly imply that to me,” Judge Alsup shot back.

The trial should be wrapping up today, and it's not looking good for the US government at this point.

from the no,-but-you-guys-should-totally-do-it dept

Vice President Joe Biden is in China and as usual, he took the opportunity to try to insert his foot in his mouth. China may be veering towards its own brand of capitalism simply because it's a manufacturing powerhouse, but it's still a long way from being an open country in any other respect.

“Innovation can only occur when you can breathe free, challenge the government, challenge your teachers, challenge religious leaders.”

All well and good, I suppose. Of course, it's much easier said than done, and Biden's contribution only included the "saying" part. These sort of challenges have actual repercussions in China, which still wishes unruly citizens into high-walled political cornfields prisons.

But what's even more irritating about his blithe statement is the fact that his own administration isn't really keen on being challenged by its citizens.

Case in point: the NSA leaks. For a long time, the administration stood firm in its support of the agency. It only stepped back when it realized the situation was going to get a whole lot worse before it got any better and that the NSA itself wasn't just lying to the public, but to the president and the rest of the government as well. It also smelled blood in the water after amendments and bills targeting the NSA and its programs began gathering bipartisan support and wanted to be as far away from the massacre on the horizon.

This administration has also prosecuted more whistleblowers than all other administrations combined. This is what happens to people who challenge the administration. They end up broken by the system, the same system that tells them it wants to be "open" and "transparent."

The administration has also shown a fondness for shutting out inquiring minds with the overuse of state secret exceptions. Sure, information may want to be free, but its overseers won't let it roam without being covered in black ink. Its track record on civil liberties has eclipsed the awfulness of the Bush administration, which at least had the courtesy to be openly evil in its intentions.

Now, I realize that as vice president, Biden doesn't truly represent the administration. He may be second-in-command, but the reality of the job demands someone who can stay out of the way while whipping up support for the administration's policies and pet legislation behind the scenes. It requires him to make appearances on behalf of the administration but kindly asks him not to embarrass it while doing so. Biden has failed to hold up his end of the bargain with his statements.

Here he hands Chinese citizens advice they can't possibly use while simultaneously highlighting the hypocrisy inherent in the administration's treatment of criticism. "Challenge your government," he tells people who can be ripped from their families for doing so before retreating to the safety of an administration that actively seeks out and punishes those who challenge its methods and actions. With this mindless bit of "go team!" posturing, Joe Biden is hurling stones from the balcony of the administration's glass house.

from the just-get-it-all,-you-never-know-when-you'll-need-it dept

Our founding fathers understood the problems with overly-broad warrants and the dangers posed by unreasonable searches and seizures. These were the sort of things kings did because the populace had no way to check that power. So, when they decided the US wouldn't be run like a patriarchal state, they built in protections for the new nation's inhabitants.

But they also understood that these checks on government power might be inconvenient for law enforcement and security agencies, which is why they built in extensive waivers and exceptions that would allow these entities to bypass the limits in order to pursue criminals, terrorists and whistleblowers. As the wording clearly states in the Bill of Rights, the people are guaranteed certain protections "unless, you know, we're trying to catch bad guys."

It's true.** Our founding fathers would be amazed to observe the ruckus being raised by so-called "defenders" of rights in the wake of the NSA leaks or the rising amount of evidence showing government agencies are willing to exploit every loophole (mainly the Third Party Doctrine) to seize tons of data completely unrelated to the investigations at hand.

Police officers in Richland County, South Carolina are currently defending the use of a controversial investigation method that grants their departments access to thousands of cell phone users’ data in the search for criminals.

The technique, in which law enforcement officials rely on what are known as “tower dumps,” is an increasingly common policing tactic in local departments across the country. Following a crime, law enforcement officials locate nearby cell towers and request all of the call, text, and data transmissions that occurred during the crime from the tower’s provider. The majority of the data collected belongs to individuals with no connection to the crime.

How does one's info end up being swept up in a tower dump? Does one have a cellphone with a signal? Yeah, that's how. Checking your email? Surfing the web? Making a call? Sending a text message? It all goes in the dump. And South Carolina cops are helping themselves to all of this data because, hey, it makes capturing bad guys a little easier. (CAUTION: AUTOPLAY IN EFFECT)

The Richland County Sheriff's Department used Tower Dumps during the investigation into a string of car breakins, where weapons and computers were stolen. They combined the Tower Dump information with DNA evidence and in 2011 arrested Phillip Tate on three counts of "breaking and entering a motor vehicle" and one count of "larceny."

"He did break and enter into both of those vehicles, one of them being the vehicle of Sheriff Lott. It was parked at his house," said Fifth Circuit Solicitor Joanna McDuffy in court. "It was his sheriff department issued vehicle. Weapons were taken from that vehicle your honor."

Search warrants we found say Richland Sheriff's investigators requested dumps on two cell phone towers during their investigation.

Cops seeking to use these tower dumps just can't call up the provider and ask for them. But neither do they have to jump through the probable cause hoops a warrant entails. All they need is a court order, which is considerably easier to obtain than a warrant, thanks to the (somewhat ironically-named) Electronic Communications Privacy Act of 1986.

The Richland PD is just one of several law enforcement entities making frequent use of these untargeted, unminimized data dumps. And the numbers keep increasing every year.

In 2011, AT&T and Verizon received 1.3 million requests for cell phone data (many of which were tower dumps) and filled more than 500,000 of them. Verizon estimates that over the last 5 years, law enforcement’s tower dump requests have increased by 15% annually. T-Mobile reported increases of approximately 12%-16%.

Thanks to the ease of obtaining tower dumps, it's becoming a go-to tool for law enforcement. Not only can they collect these without needing to show probable cause, they're also under no obligation to inform any of the millions of unrelated cellphone customers whose information they've obtained that they've swept up their data.

Oddly enough, someone from the counterterrorism community is being the voice of reason in all this.

"In recognizing that it's not just the CIA or FBI tracking a terrorist that may have flown over here, this is local law enforcement. As citizens, we sort of have a question: how often is this happening?" said Keith Pounds, president of counterrorism consulting firm Countercon…

He supports Tower Dumps, but only if a search warrant is signed, the data is purged after an investigation is complete and law enforcement notify subscribers included in the database.

"Inform us," Pounds said. "Or at least those couple of hundred or couple of thousand people, innocent people, inform them that hey we acquired your information for this particular crime. We're going to purge the data and get rid of it."

This obviously isn't being implemented anywhere at the moment, or we would have heard of it. Law enforcement agencies are understandably in no hurry to tell innocent citizens that they're sweeping up their data in order to sift through it for potential signs of wrongdoing. They seem to be taking their cues from our nation's intelligence agencies, which only begrudgingly inform the public about their data hauls, and then only after former employees splash them all over the front pages of newspapers.

Making this worse (especially for South Carolina residents) is that local laws regarding this data tie retention rates to whether the suspect apprehended using tower dumps is convicted or not.

South Carolina evidence control laws say if a suspect is convicted or pleads guilty, police could keep everything they get from a Tower Dump for up to seven years.

So, your data's stay in SC police databases isn't subject to any minimization by process of elimination. It isn't even purged once a guilty verdict (or entered plea) is obtained. Instead, SC law enforcement has nearly a decade (or longer -- no mention of what happens if the suspect is found not guilty) to play connect-the-dots with data on non-criminals.

Even worse, this is a state that at least has somesort of policy in place to deal with this data. Most states have very little in the way of guidelines or privacy protection. Usually, these are developed post-public uproar. And if no one has to inform the public about the gathering of their data, this delays the (almost inevitable) exposure of these practices and increases the chances of abuse.

from the not-very-convincing dept

In an interview on Thursday, President Obama said that he's going to propose some "self-restraint on the NSA" and to "initiate some reforms that can give people more confidence." Of course, he's the boss of the NSA. He doesn't need to "propose" anything -- he can order them to stop. Furthermore, it appears that nearly everything else he talked about was supporting the actions of the NSA, so it's a bit difficult to take seriously this idea that there will be any significant decrease in NSA activity.

"The challenge is...we do have people who are trying to hurt us. And they communicate through these same systems," Obama said. "And if we're going to do a good job preventing a terrorist attack in this country, a weapon of mass destruction getting on the New York subway system, etc., we do want to keep eyes on some bad actors."

"I want to everybody to be clear: the people at the NSA, generally, are looking out for the safety of the American people. They are not interested in reading your emails. They're not interested in reading your text messages. And that's not something that's done. And we've got a big system of checks and balances, including the courts and Congress, who have the capacity to prevent that from happening," the president added.

That's misleading to inaccurate, depending on your perspective. The checks and balances are not all they're cracked up to be, with everyone pretty much reliant on the NSA telling the truth, combined with the fact that many of those responsible for "oversight" are so close with the NSA that they're more co-conspirators than actual overseers.

Separately, can we drop this whole "they're not interested in reading your emails" bullshit? All people are saying there is "look you're a peon so shut up and deal with the fact that you have no privacy." That's ridiculous. Clearly the NSA is reading lots of people's emails (and getting data about them and what they do). While they might not make use of it today to spy on you in particular, that doesn't mean that it won't change in the future when suddenly you become "a person of interest" for whatever reason. It's easy for some people to think that the government won't ever care what they're doing -- but that can always change in a hurry and by the time it does, it's too late to start "worrying" about your privacy.

On top of that, recent revelations have made it clear that the NSA has no qualms at all about using information it gathers on non-terrorists that it doesn't like to try to destroy their lives. Sure, the NSA might not want to read your email today. But, piss off the wrong person tomorrow...

Separately, if they don't want to spy on me, let's make a simple deal then: stop doing it. It's hard to square this claim from NSA defenders that it's okay to spy on all of us because they don't want to spy on all of us. The right response is to stop spying on all of us. You want to go after the so-called "bad people," okay, then target those people but not everyone in hopes you might find some bad people mixed in there.

Oh, and once again, it's incredibly insulting how completely unconcerned the President and other NSA defenders seem to be about the rest of the world. Once again the message is basically: if you're not American, fuck you.

"The N.S.A. actually does a very good job about not engaging in domestic surveillance, not reading people's emails, not listening to the contents of their phone calls. Outside of our borders, the NSA's more aggressive. It's not constrained by laws," Obama said.

But it can be constrained by their boss, who happens to be the President. Will he actually do anything?

from the nothing-is-beyond-our-reach dept

Over the past few months, I've certainly wondered quite a bit about just how bad the NSA seems to be at recognizing how the public feels concerning what it's doing. This week's revelations about tracking mobile phone locations was incredible because folks at the NSA must have known that information about this program was in Snowden's collection, and yet when they were asked about collecting location info a few months ago, they made statements that would clearly look bad, when put next to the truth:

“We don’t get any cell site or location information as to where any of these phones were located.” -- Keith Alexander

These phones. Under this program. But under this other program we collect pretty much everything. Beyond that, the various "code names" the NSA uses are somewhat revealing as well. Lots of people commented on the insanity of calling the giant database FASCIA. But, at the very least, you could argue that the NSA never expected those code names to be made public. And with the misleading statements, they were still holding out hope that maybe, just maybe, a meteor would magically flatten Glenn Greenwald, Barton Gellman and Laura Poitras before the info got out.

You may not be able to see the logo used on the rocket, but here's a closeup.

Yes, it's an octopus, with tentacles reaching all over the globe. And the tagline is "Nothing is Beyond Our Reach."

Sure. They're spies. This is what they do. But, somehow, you'd think that maybe, just maybe, someone with a tiny bit of sense back there at the office of the director of national intelligence would think that, "gee, a lot of people around the globe are pretty fucking angry at us for all the spying we're doing right now. maybe we shouldn't be spitting in their faces, mocking their concerns, and reminding them that we're blatantly evil people who really don't give two shits about their privacy."

Of course, that would take some actual recognition of what anyone thinks of them, and that doesn't seem to be part of the way that the US intelligence community operates.

The request to bar nonlethal weapons was made by the ACLU, the Texas Appleseed group, along with the Mexican American Legal Defense and Educational Fund, Disability Rights Texas, Texans Care for Children, the Texas Criminal Justice Coalition and the National Alliance on Mental Illness Texas.

"Tragic incidents like this one demonstrate why the state should not grant police free rein to wield weapons in schools for the apparent purpose of maintaining order," said Terri Burke, executive director of the ACLU of Texas. "Schools should be safe havens from this type of police use of force. I hope the commission will heed our call to end use of Tasers and pepper spray."

This attacks part of the problem. These weapons are often deployed carelessly because of their "nonlethal" descriptor. The indiscriminate use of Tasers has resulted in serious injuries and death over the past several years but banning these nonlethal weapons leaves officers employed by schools with few options when the use of force is necessary.

The use of Tasers and pepper spray was defended by Chief C.A. "Chuck" Brawner, of the Spring Branch Independent School District police force, who said nonlethal weapons are necessary so officers don't have to use firearms or nightsticks on unarmed students…

"When you take away the pepper spray and you take away the Taser, what do you have left?" Brawner said. "What if there are several people and you have one officer and they can't control them and they could get away and cause other problems, how do you stop them? When you start taking away other options other than a firearm or a nightstick, what else are you going to use?''

A ban of Tasers and pepper spray would arguably make things worse, leaving officers with the option of beating or shooting students when things get out of hand. This problem needs to be approached from a different direction if schools hope to prevent this sort of thing in the future.

More training is obviously key, and not just training officers on how to deploy nonlethal weapons more "safely," but training them how to resist the impulse to deploy nonlethal weapons when the situation doesn't warrant it. This is much trickier. Fights have occurred in schools for as long as schools have been around. For years, they were broken up by faculty with no training and no weapons, lethal or not. The prevailing belief that only a law enforcement officer can control fighting students is not only wrong, but it's led to on-campus officers handling a great deal of the intervention and discipline that administrators themselves used to handle, often with regrettable results.

This has the effect of turning a common schoolyard fight into a criminal activity, and the response tends to be tailored more towards stopping a street fight than breaking up an altercation between students. If the students aren't using weapons (and they shouldn't be, what with all the other policies in place), then the responding officer shouldn't feel a need to use a weapon either.

If the situation seems to be escalating dangerously, the on-campus officer should have several nonlethal options to deploy before turning the situation deadly. But even the deployment of tasers and pepper spray should be a last resort rather than something used to quickly nullify the perceived threat. The safety of the students should still be paramount. Deploying a Taser simply because someone isn't moving fast enough, being responsive enough or simply "looking threatening" is not the correct response.

I agree with the ACLU's assertion that schools should be a "safe haven" from the use of force, but a ban will have negative consequences, especially if the underlying issues (the use of police officers as a disciplinary tactic; the overuse of force by resource officers) aren't addressed. Instead of a tasing that leads to a coma, we'll have gunshots and blunt force trauma. There's a culture grown from zero tolerance policies and its attendant paranoia that infects administrators and the officers they employ. This needs to addressed before we can start removing nonlethal options.

from the not-gonna-happen dept

Politicians for the opposition Labor Party in Australia have called on the government there to release the text of the TPP agreement before it's signed. Yes, it's crazy that this even needs to be discussed, but the latest round of negotiations are going on, and there have been some rumors that the plans are to let countries "sign" on at the end of the negotiations, before any text is officially released. Countries would still have to ratify, so the signature is largely symbolic, but it still seems fairly ridiculous that any government would agree to sign a massive trade agreement with huge implications for pretty much all of their citizens without the document ever being made public. Frankly, the idea that any country would consider moving forward with such an agreement before they've allowed any public discussion of the text is about as anti-democratic as you can imagine.

While it's good that the Labor party is making this request, the very fact that it needs to do so shows just how screwed up the entire TPP process is. It's a backroom deal put together to help a few big industries at the expense of nearly everyone else -- and the whole thing is secret. This isn't how countries which claim to be open, free and democratic are supposed to act. But, of course, as former USTR Ron Kirk admitted during a moment of candor, if the public actually got to see what's in the TPP, the agreement would never get approved. And that's exactly why it shouldn't be approved.